Bank of America, N.A. v. Silverstar Maintenance, Inc. et al
Filing
18
Order: Plaintiff's Motion to Strike Answer to Amended Complaint (Doc. # 16) is GRANTED to the extent it purports to be an Answer on behalf of Silverstar;Silverstar has until and including September 17, 2013, to obtain counsel; Plaintiff's Motion for Default Against Peter and Victoria Miu (Doc. # 16) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 8/16/2013. (KNC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BANK OF AMERICA, N.A.,
as successor by merger to
LASALLE BANK NATIONAL
ASSOCIATION, a national
banking association,
Plaintiff,
Case No.8:13-cv-1568-T-33MAP
v.
SILVERSTAR MAINTENANCE, INC.,
a Florida corporation; PETER
MIU, an individual; and VICTORIA
MIU, an individual,
Defendants.
________________________________/
ORDER
This cause is before the Court pursuant to Plaintiff
Bank
of
America’s
Motion
to
Strike
Answer
to
Amended
Complaint and Motion for Default, filed August 5, 2013.
(Doc. # 16). Upon due consideration, and for the reasons
stated below, the Court (1) grants Bank of America’s Motion
to Strike Answer to Amended Complaint to the extent that it
purports
to
be
an
Answer
on
behalf
of
Silverstar
Maintenance, Inc., and (2) denies Bank of America’s Motion
for Default.
I.
Background
Bank
2013,
of
against
America
commenced
Silverstar,
this
Peter
action
Miu,
and
on
June
14,
Victoria
Miu
alleging mortgage foreclosure, breach of promissory note,
and breach of guaranty agreements. (Doc. # 1 at 2, 4-5).
The Court has subject matter jurisdiction over this matter
pursuant to 28 U.S.C. § 1332.1
In its Amended Complaint, Bank of America states that
“on
or
about
May
18,
2004,
[Silverstar]
executed
and
delivered to Bank of America a Multifamily Note in the
principal amount of $1,560,000.00 for the purchase of real
property . . . .” (Doc. # 7 at ¶ 7). At the time of
execution,
Peter
and
Victoria
Miu
endorsed
the
Note
as
guarantors. (Id. at ¶ 8).
1
In sufficiently establishing diversity jurisdiction, Bank
of America has alleged that it is a “national banking
association with its main office, as set forth in its
articles of association, located in Charlotte, North
Carolina and is, therefore, a citizen of North Carolina . .
. .”(Doc. # 7 at ¶ 1). Bank of America further notes that
Peter and Victoria Miu are citizens of Florida, and
Silverstar is an inactive Florida corporation that was
administratively dissolved; however, prior to dissolution,
Silverstar’s last place of business was Hillsborough
County, Florida. (Id. at ¶¶ 2-4). Additionally, Bank of
America
has
adequately
alleged
that
the
amount
in
controversy in this action exceeds the jurisdictional
threshold of $75,000. (Id. at ¶ 5).
2
The
relevant
Note
is
secured
by
a
“Multifamily
Mortgage, Assignment of Rents and Security Agreement . . .
which grants a mortgage to Bank of America with respect to
the
property
identified
therein
then
owned
by
and
in
possession of Silverstar.” (Id. at ¶ 9). According to Bank
of America, “Silverstar is the present record title holder
of the [p]roperty and/or various fixtures thereon . . .
[h]owever, Silverstar’s interest in the [p]roperty and/or
various
fixtures
thereon
is
subject,
subordinate,
and
inferior to the right, title, interest, and lien of Bank of
America.” (Id. at ¶ 14).
Bank
of
America
alleges
that
Silverstar
defaulted
under the terms of the Note when it (1) failed to make
required payments in March 2013 and April 2013, and (2)
failed to pay the 2012 real estate taxes on the property.
(Id.
at
¶¶
15,
24).
Upon
the
alleged
default,
Bank
of
America declared the full amount payable under the loan
due,
which
Bank
of
America
contends
Silverstar
has
not
paid. (Id. at ¶¶ 17, 25-6). As of May 31, 2013, Bank of
America
that
is
purports
due
on
that
Silverstar
principal
on
owes
the
it
Note,
“$1,380,346.85
together
with
interest in the amount of $35,040.68 plus late charges,
costs,
title
search
expenses,
3
and
all
other
amounts
recoverable from Silverstar under the Loan Documents.” (Id.
at ¶¶ 18, 27).
Bank of America further alleges that as a result of
Silverstar’s
default,
guarantors,
are
Peter
personally
and
liable
Victoria
for
the
Miu,
as
outstanding
payments and performance of the obligations due under the
Note. (Id. at ¶ 33). After Silverstar’s alleged default,
Bank of America demanded the outstanding balance from Peter
and Victoria Miu, which according to Bank of America they
“failed or refused” to pay.
(Id. at ¶¶ 36-7). Therefore,
it is Bank of America’s position that Peter and Victoria
Miu
are
failure
interest
“in
to
default
make
which
of
payments
Silverstar
their
of
guaranty
principal
failed
to
Peter
and
obligations
costs,
pay
under
for
fees,
and
the
Loan
Documents.” (Id. at ¶ 38).
On
July
12,
2013,
Victoria
Miu,
as
registered agents of Silverstar, filed a letter construed
by this Court as an Answer. (Doc. # 12). Bank of America
filed the present Motion to Strike and Motion for Default
on August 5, 2013. (Doc. # 16).
4
II. Legal Standard
A.
Motion to Strike
Rule 12(f) of the Federal Rules of Civil Procedure
provides:
The
court
may
strike
from
a
pleading
an
insufficient
defense
or
any
redundant,
immaterial, or scandalous matter. The court may
act: (1) on its own; or (2) on motion made by a
party either before responding to the pleading
or, if a response is not allowed, within 21 days
after being served with the pleading.
Fed. R. Civ. P. 12(f).
Motions
to
strike
are
considered
“drastic”
and
are
disfavored by the courts. Thompson v. Kindred Nursing Ctrs.
E.,
LLC,
211
F.
Supp.
2d
1345,
1348
(M.D.
Fla.
2002).
Generally, “a court will not exercise its discretion under
the rule to strike a pleading unless the matter sought to
be omitted has no possible relationship to the controversy,
may confuse the issues, or otherwise prejudice a party.”
Reyher v. Trans World Airlines, Inc., 881 F. Supp. 574, 576
(M.D. Fla. 1995).
B.
Motion for Default
Federal
Rule
of
Civil
Procedure
55(a)
provides:
“[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend,
and that failure is shown by affidavit or otherwise, the
5
clerk must enter the party’s default.” A district court may
enter
a
default
judgment
against
a
properly
served
defendant who fails to defend or otherwise appear pursuant
to Federal Rule of Civil Procedure 55(b)(2). DirecTV, Inc.
v. Griffin, 290 F. Supp. 2d 1340, 1343 (M.D. Fla. 2003).
The mere entry of a default by the Clerk does not, in
itself, warrant the Court entering a default judgment.
See
Tyco Fire & Sec. LLC v. Alcocer, 218 F. App’x 860, 863
(11th Cir. 2007) (citing Nishimatsu Constr. Co. v. Houston
Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). Rather, a
Court must ensure that there is a sufficient basis in the
pleadings for the judgment to be entered.
judgment
has
plaintiff’s
the
effect
well-pled
of
establishing
allegations
of
fact
Id.
A default
as
fact
the
and
bars
the
defendant from contesting those facts on appeal.
Id.
III. Analysis
A.
Motion to Strike Answer to Amended Complaint
In its Motion, Bank of America alleges that Silverstar
has attempted to appear in a pro se capacity, which is not
permitted under the Local Rules. (Doc. # 16 at ¶ 10). In
support of this contention, Bank of America suggests that
the construed Answer was prepared on behalf of Silverstar
6
by
Peter
and
Victoria
Miu,
as
registered
agents
of
Silverstar, and not by a licensed attorney.2
From the Court’s review of the construed Answer, it
appears
that
Silverstar
is
not
represented
by
counsel.
According to Local Rule 2.03(e), “a corporation may appear
and be heard only through counsel admitted to practice in
the Court . . . .” M.D. Fla. R. 2.03(e).
Furthermore, a
long line of cases hold that corporations may not appear
pro se in this Court. See Palazzo v. Gulf Oil Corp., 764
F.2d
1381,
1385
(11th
Cir.
1985)(“The
rule
is
well
established that a corporation is an artificial entity that
can act only through agents, cannot appear pro se, and must
be
represented
Having
Fun
by
Yet,
counsel.”);
Inc.,
No.
Textron
Fin.
Corp.
3:09-cv-2-J-34TEM,
v.
RV
2010
WL
1038503, at *6 (M.D. Fla. Mar. 19, 2010)(“a corporation’s
financial constraints do not excuse the requirement that it
have legal representation in Court proceedings.”); United
States v. Hagerman, 545 F.3d 579, 582 (7th Cir. 2008)(“Pro
se litigation is a burden on the judiciary, and the burden
2
Bank of America claims it conducted a “search of the
Florida Bar’s roll of registered attorneys” and was unable
to locate Peter and/or Victoria Miu. (Doc. # 16 at 5).
Furthermore, Bank of America notes that if Peter and/or
Victoria
Miu
are
licensed
attorneys
in
another
jurisdiction, neither has requested permission from the
Court to appear pro hac vice. (Id.).
7
is not to be borne when the litigant has chosen to do
business in entity form.
He must take the burdens with the
benefits.”)(internal citations omitted).
Accordingly,
Silverstar
has
until
September 17, 2013, to obtain counsel.
appearance
of
counsel
filed
on
behalf
and
including
Absent a notice of
of
Silverstar
by
September 17, 2013, Bank of America is free to initiate the
default process.
B.
Motion for Default against Peter and Victoria Miu
In its Motion, Bank of America alleges that the letter
filed by Peter and Victoria Miu, which this Court construed
as an Answer, is signed by Peter and Victoria Miu not in
their individual capacities, but as registered agents of
Silverstar. (Doc. # 16 at ¶¶ 7, 9). Furthermore, Bank of
America
proper
opposed
contends
response
to
that
—
it
specific
the
sets
Answer
forth
statements
does
not
general
and
constitute
assertions
defenses
to
a
as
the
Complaint allegations. (Id. at ¶ 9). Therefore, it is Bank
of
America’s
position
that
Peter
and
Victoria
Miu
have
failed to plead or otherwise defend as provided by Rule
55(a) of the Federal Rules of Civil Procedure, and thus, an
entry of default against Peter and Victoria Miu is proper.
Id.
8
Upon due consideration, the Court finds that Peter and
Victoria
Miu
Complaint.
attempted
Rule
to
8(b)(1)
respond
of
the
to
Bank
Federal
of
Rules
America’s
of
Civil
Procedure states, in pertinent part: “[A] party must: (A)
state in short and plain terms its defenses to each claim
asserted against it; and (B) admit or deny the allegations
asserted
against
it
by
an
opposing
party.”
In
their
response, Peter and Victoria Miu admitted they purchased
6641 and 6715 Deeb Street, Port Richey, Florida, 34668, on
May
24,
2004,
identified
in
for
the
$2,750,000,
mortgage
which
documents.
is
the
(Doc.
property
#
12
at
1);(Doc. # 1 at Ex. B). Furthermore, the response contains
relevant assertions that relate directly to the legal and
factual
questions
surrounding
the
controversy.
In
the
Court’s view, Peter and Victoria Miu, in their individual
capacities, have adequately responded to Bank of America’s
Complaint.
Therefore,
the
Court
determines
that
it
is
appropriate to deny Bank of America’s Motion for Default.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiff’s
Motion
to
Strike
Answer
to
Amended
Complaint (Doc. # 16) is GRANTED to the extent it
purports to be an Answer on behalf of Silverstar;
9
(2)
Silverstar has until and including September 17, 2013,
to obtain counsel;
(3)
Plaintiff’s
Motion
for
Default
Against
Peter
and
Victoria Miu (Doc. # 16) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this
16th day of August, 2013.
Copies to: All Counsel and Parties of Record
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